NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CAROLINA NATURAL GAS CORPORATION, Respondent, 386 F.2d 571

SOBELOFF, Circuit Judge: The National Labor Relations Board seeks enforcement of the order it issued upon its finding that the Carolina Natural Gas Corporation violated

section 8 (a) (1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), (5) by refusing to bargain with the duly elected representative of its production and maintenance employees. Resisting enforcement, the Company challenges the validity of the representation election and the resulting certification of the International Chemical Workers Union. In August, 1964, the Union filed a standard petition with the Board’s Regional Director in order to initiate representation proceedings. • A representation hearing was held to ascertain the employees who would be entitled to vote at the proposed election.

At the hearing, Company Vice-President in charge of operations, James Buchanan, in response to questioning by counsel, enumerated and described employee classifications, which the Company contended comprised “production and maintenance employees.” Although 17 employment categories were discussed, “order dispatchers and field clerks” was the only job designation which went completely undescribed.

The sole allusion to these employees in the record is Buchanan’s three-word affirmative response to a question propounded by company counsel asking only whether the Company employed “order dispatchers and field clerks.” This colloquy occurred approximately mid-way through Buchanan’s exposition of the duties of his company’s employees. At the conclusion of Buchanan’s direct examination, company counsel moved the inclusion into the bargaining unit of “those people and those jobs who have been described by the witness.” The union representative stipulated to their incorporation.

Later in the hearing, the Company’s counsel stipulated that office clericals were to be excluded from the unit. As a result of the hearing, the Regional Director ordered a secret ballot election for “[a] 11 production and maintenance employees of the Employer * * *, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act.” Of the 47 employee votes cast at the subsequent election, 22 supported the Union, 20 opposed it, and 5 were challenged by the Union as clerical workers not within the unit. The Regional Director upheld the challenges and certified the Union.

Following the Board’s affirmance, the Company’s refusal to bargain, the General Counsel’s complaint and the Company’s answer, the Trial Examiner granted the General Counsel’s motion for judgment on the pleadings since he found no need for an evidentiary hearing. The Board affirmed and issued the order, enforcement of which is sought here. The Company has refused to obey the order on the grounds that the challenges were improperly sustained and that the election was vitiated by procedural irregularities and electioneering.

Its primary contentions are that the Union should be bound by its stipulation to include field clerks within the unit and that a hearing must be held to determine the validity of the election. We find no merit in either contention and enforce the Board’s order. The stipulation regarding the field clerks was so shrouded in ambiguity as to merit no binding effect. Nine job classifications had been described in some detail by Mr. Buchanan before the fleeting reference to field clerks, following which six more categories were fully explored. When Mr.

Buchanan terminated his direct testimony, the attention of both counsel centered on the disputed seventeenth category of welders, who apparently had some supervisory functions. It was in this setting that the Union’s counsel was asked to stipulate as to those categories “described.” Not only was there no description of the duties of field clerks, but there was also no identification of the people who served in that capacity. In illuminating contrast is the stipulation of company counsel that office clericals were to be excluded.

Immediately before that stipulation, Buchanan identified each person within the category and gave a detailed analysis of her duties. In light of the circumstances surrounding the stipulation regarding field clerks, the Regional Director cannot be faulted for independently investigating the disputed category or for subsequently sustaining the challenges.

The Director’s investigation, which offered all parties a full opportunity to submit and present written evidence, revealed a close similarity between the duties of field clerks and office clericals and a wide divergence between the activities of production and maintenance employees and those of field clerks. Like the excluded office clericals, all five of the challenged field clerks are women. In describing the other 16 categories, Mr. Buchanan continually referred to the workers as men, an understandable choice of language in light of the duties of these workers.

Buchanan’s list included gas pipe layers, ditch diggers, appliance installers, welders, servicemen, ware-housemen, regulator repairmen and deliverymen. The Director found that the primary functions of a field clerk are to keep records, receive and relay telephone calls from the customers to the servicemen and to collect money. The five employees in question spend up to 95 per cent of their time in an office, which they leave only to deliver a service order to a serviceman or to take in freight.

Of course, the Board has the primary responsibility for marking out the appropriate unit for the purpose of representation proceedings. General Instrument Corp. v. NLRB, 319 F.2d 420 (4th Cir. 1963), cert denied, 375 U.S. 966, 84 S.Ct. 484, 11 L.Ed.2d 415 (1964). An examination of the factual underpinnings of the Board’s decision completely dispels the contention that the Board has abused its discretion or acted arbitrarily or capriciously. Moreover, the Board’s inclusion of field clerks with office clericals is in accordance with its customary practice in the utility industry.

See Montana-Dakota Utility Co., 115 N.L.R.B. 1396 (1956). The Company contends that the Board, by virtue of the Union’s stipulation, has lost its power to determine the appropriate unit. To this end, it cites NLRB v. Schapiro & Whitehouse, 356 F.2d 675 (4th Cir. 1966); NLRB v. J. J. Collins’ Sons, Inc., 332 F.2d 523 (7th Cir. 1964) and NLRB v. Joclin Manufacturing Co., 314 F.2d 627 (2d Cir. 1963). These cases are inapposite. In each of the cited cases, the stipulation was entered into as part of the expedited “consent election” procedure.

As a result, each of the stipulations was written and signed only after apparent analysis and deliberation. Those stipulations amounted to full-fledged agreements, reflecting a true meeting of the minds. The contracts, as Judge Friendly termed them in the Joclin case, were either extremely precise as to the job categories or they incorporated listings of specific individuals who comprised the unit. Furthermore, each of those agreements was specifically approved by the Board.

The oral, extemporaneous, highly ambiguous and unapproved stipulation here has nothing in common with those dealt with in the cited cases and should not preclude the Board from making an independent investigation into the appropriate unit. It is true that at no stage in the proceedings was the Company granted an evidentiary hearing to prove the procedural irregularities and electioneering which it contends invalidated the election. However, this is not ipso facto a sufficient reason for denying enforcement. An essential prerequisite to the right to a hearing is something to be heard. See NLRB v.

Bata Shoe Co., 377 F.2d 821 (4th Cir. 1967); NLRB v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245 (5th Cir. 1964). The Rules and Regulations of the Labor Board provide that there is a right to a hearing only where there is a “substantial and material factual issue” which can only be resolved at such an inquest. 29 C.F.R. 102.69(c); NLRB v. O.K. Van Storage, Inc., 297 F.2d 74 (5th Cir. 1961). As noted by the Second Circuit, such a requirement is “not only proper but necessary to prevent dilatory tactics by employers or unions disappointed in the election returns * * NLRB v.

Joclin Manufacturing Co., supra at 314 F.2d. 632. As will be shown, the Company’s allegations here appear to be no more than the dilatory maneuvers this screening device was designed to combat. The first, and by apparent implication weightiest, procedural irregularity asserted by the Company is a 37-minute delay in holding the election. Scheduled for four o’clock, the voting did not begin until twenty-three minutes to five. The Regional Director’s investigation revealed that the late start was occasioned by the Board Agent’s being delayed in another labor matter.

Neither in its brief nor elsewhere does the Company allege any specific adverse effect on the election from this delay. There is no particularized claim of confusion at the poll or departures by any of the electorate. The Director found the delay inconsequential, and we agree. The two electioneering incidents complained of are similarly innocuous. It is contended that before the balloting began a union representative accosted a small group of voters standing fifteen feet from the polling place. There is no allegation as to what was said or what impact his presence had, if any.

When asked to leave, he did so immediately. In the second incident, either the union observer or the Board Agent said “There’s my boys” as some of the workers approached the voting table. The Company avers that the factual dispute over which of these two men made this statement necessitates a hearing. In our opinion, it makes no earthly difference which of them called out. The isolated remark and the union representative’s brief conversation could not possibly have had the effect, singly or cumulatively, of impairing the employees’ freedom of choice.

Consequently, the Board was well within its province in finding a free election. NLRB v. Shirlington Supermarket, Inc., 224 F.2d 649 (4th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 198, 100 L.Ed. 801 (1955). Just as the burden of establishing a substantial and material question of fact requiring a hearing was, on the respondent, so the onus of proving that the election was conducted improperly rests upon it. NLRB v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961). The Company has failed to discharge either burden.

Even if the evidence at a hearing were to prove the Company’s frivolous assertions, as a matter of law there would be no justification for setting aside this election. NLRB v. Air Control Products of St. Petersburg, Inc., supra. The Board’s order is enforced. Enforced.